RAM PRATAP MAHTO Vs. LALU RAM

JUDGEMENT

(1.) AGGRIEVED by order dated 14.02.2014 in Title Suit No. 8 of 2010 whereby, application under Section 10 C.P.C. seeking stay of further proceeding in the suit till the disposal of Second Appeal No. 74 of 2006 has been rejected, the present writ petition has been filed.

(2.) TITLE Suit No. 69 of 1990 was instituted by one Lalu Ram who is respondent in the writ petition. In the suit, the plaintiff asserted that the suit land originally belonged to Banshi Pandey, Ajodhya Pandey and Sridhar Pandey, all sons of Late Ram Sevek pandey. The defendants received Rs. 3,000/ - from the plaintiff as advance consideration money and executed written agreement on 27.04.1987 for sale of the suit land. The plaintiff further asserted that after receiving part of consideration money, physical possession of the suit land was delivered to him however, on 24.04.1990, the defendants sold the suit land to defendant No. 4 -the petitioner herein and therefore, Title Suit No. 69 of 1990 was instituted. The suit was instituted for a direction upon the defendants first set to execute sale -deed with respect to Schedule -A property and for rectifying agreement dated 27.04.1990 for inserting plot No. 66 of village Chutia, P.S. - Sadar, District -Ranchi along with H.N. No. 374 described in Schedule -A. Vide judgment and order dated 20.02.1995, the suit was decreed, against which Title Appeal No. 27 of 1995 was filed by the petitioner. On 04.08.1998, title appeal was partly allowed on the ground that the trial court did not frame issue regarding rectification of document nor evidence was adduced by the plaintiff on the point. Upon remand Title Suit No. 69 of 1990 was decreed vide judgment and order dated 30.01.2004 and the appeal preferred by the petitioner being Title Appeal No. 29 of 2004 was dismissed on 02.02.2006 as barred by limitation. Thereafter, the petitioner preferred Second Appeal No. 74 of 2006 which has been admitted for hearing on 16.08.2011. In the meantime, the respondent herein instituted Title Suit No. 8 of 2010 for declaration of his right, title and interest over the suit property and for delivery of physical possession of the suit property by evicting the defendants from the suit land. The petitioner therefore, filed petition dated 04.08.2010 under Section 10 C.P.C. seeking stay of further proceeding in Title Suit No. 8 of 2010 till final disposal of Second Appeal No. 74 of 2006 on the ground that issues framed in Title Suit No. 8 of 2010 are directly and substantially in issue in the earlier suit bearing number Title Suit No. 69 of 1990. The said application has been dismissed vide order dated 14.02.2014

(3.) MR . Rohitashya Roy, the learned counsel for the petitioner submits that, issues in both the suits are directly and substantially similar and the decision in Title Suit No. 69 of 1990 would constitute res -judicata for grant of relief in Title Suit No. 8 of 2010 and therefore, further proceeding in Title Suit No. 8 of 2010 should have been stayed. Referring to decision in "Shri Ram Tiwary & Anr. v. Bholi Devi & Anr." : AIR 1994 Patna 76 and "Sagar Shamsher Jung Bahadur Rana & Anr. v. The Union of India & Ors." : AIR 1979 Delhi 118, the learned counsel for the petitioner submits that an appeal is the continuation of the suit. Since Second Appeal No. 74 of 2006 is pending adjudication before this Court and, if the second appeal preferred by the petitioner is finally allowed, it would bar the relief sought by the respondent in Title Suit No. 8 of 2010.